Goerges v. Hufschmidt

• Decision Date: 31 March 1869
• Citation: 44 Mo. 179
• Parties: ANNA GOERGES, Respondent, v. HUFSCHMIDT and MOSBY, Appellants.
• Court: Missouri Supreme Court

44 Mo. 179

ANNA GOERGES, Respondent,

v.HUFSCHMIDT and MOSBY, Appellants.

Supreme Court of Missouri.

March Term, 1869.

Appeal from Sixth District Court.

H. C. Lackland, and Wm. A. Alexander, for respondent.

Bruere, and Lewis, for appellants.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff brought her action of forcible entry and detainer before a justice of the peace, and the cause was removed, by certiorari, to the Circuit Court. Upon trial in that court, the jury found a verdict for the plaintiff, and an appeal was taken to the District Court, where the judgment of the Circuit Court was affirmed, and the cause is now brought here by appeal.

It seems that the plaintiff had been in the possession of the premises in controversy for about five years, part of the time in conjunction with one McIntosh--she and McIntosh occupying separate rooms--she claiming to be the tenant of McCartney, and McIntosh being a mere intruder, holding under no one. The public schools claimed title to the property, and commenced an action of ejectment against McIntosh to recover possession. Immediately after service of the summons he vacated the premises, and judgment by default was rendered against him. A writ of restitution issued on this judgment, and the sheriff forcibly turned the plaintiff out of the house, together with a part of her furniture, though she was no party to the proceeding in ejectment, nor did her name appear in the writ. After the dispossession, the plaintiff again regained quiet and peaceable possession of the premises, and was thereafter assaulted and ejected by the defendant Hufschmidt, who claimed to be a lessee of the schools, and who put Mosby in as his tenant.

The principal error complained of in this court is the instruction given to the jury, which declared in substance that even if the sheriff did dispossess the plaintiff temporarily, yet if her name was not in the writ under which he acted, then the sheriff had no legal authority to dispossess her, and her right of possession was not disturbed thereby; and that if she returned to the possession, neither the schools nor defendants had the right to dispossess her by force afterward. It is insisted here that this instruction should have been so framed that the question whether the plaintiff went into possession as tenant to McIntosh could have been considered by the jury. But the conclusive answer to this is that there was no evidence on which to base such an instruction. There was no...